Talking points for KEI statement at SCCR 25, November 21, 2012

I just read from these talking points at WIPO SCCR 25, where the topic under discuss is a proposed treaty for persons who are blind or have other disabilities. (See http://keionline.org/r2r).

1. KEI is disappointed that deaf people are left out.

2. KEI is disappointed that there is a proposal to eliminate the article on contracts. We agree with the Library Copyright Alliance that contracts are now being used to undermine exceptions. The treaty should have provisions to make it clear that governments may override exception killing contracts.

3. The copyright three-step-test is an important topic, and it is important that nothing done this week undermines the current national flexibility that the public has to fashion exceptions.

If the three-step-test is already the law, then it does not need to be included here. If it is not, why include it here? If is, after all, an attempt to put a straight jacket on countries, limiting their freedom to write laws to solve problems. In fact, it is not the case that countries adopt excessive exceptions.

The three-step-test, under some interpretations, is a restrictive "one strike and you are out" system, as compared, for example, to the US fair use approach, which balances different factors, or the fair practices standard in other countries. Some publishers want the three-step test marginalize or eliminate exceptions.

The Berne Convention provides for many types of exceptions outside of the three-step-test, for example, in the areas of quotations, education, facts, news of the day, public affairs, and other areas. This treaty should not undo that flexibility. (More here: http://keionline.org/copyright)

4. KEI is concerned about efforts to introduce excessive red tape. There is no evidence the non-profit entities that use exceptions have abused the exceptions. The Appendix to the Berne is an embarrassment to the international copyright system because it is too complex and is almost never used. The WHO solution to Paragraph 6 of the Doha Declaration is likewise criticized for being too complex, and having too much red tape.

5. For non-profit entities, there should be no requirement regarding commercial availability. It will lead to ambiguity, litigation, and delays. If the treaty provisions were extended to for profit entities, such a requirement may have a place.